Roll No:

Semester:

JYOTIRMOYEE SCHOOL OF LAW MOOT COURT, 2019

BEFORE

THE HON’BLE SUPREME COURT OF BAGISTHAN

Appellate side jurisdiction

Criminal Appeal no……………of 2019

[UNDER ARTICLE 134 OF THE CONSTITUTION OF BAGISTHAN]

IN THE MATTER OF

STATE OF BAGISTHAN……………………………………………APPLICANT

VS

BIR BAHADUR……………………………………………………….RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF SUPREME COURT OF BAGISTHAN

MEMORIAL ON BHALF OF THE RESPONDENT

MERORIAL ON BEHALF OF THE RESPONDENT

 2
Roll No:
Semester:

TABLE OF CONTENTS

1. Index of Authorities……………………………………………………………3

2. Statement of Jurisdiction……………………………………………………….4

3. Statement of Facts………………………………………………………………5-7

4. Statement of Issues………………………………………………………………8

5. Summary of Arguments…………………………………………………………9

6. Written Pleadings…………………………………………………………...…..10-11

7. Prayer……………………………………………………………………………12

MERORIAL ON BEHALF OF THE RESPONDENT

 3
Roll No:
Semester:

INDEX OF AUTHORITIES

LIST CASES

1. State Of Orissa vs Ram Bahadur Thapa AIR 1960 Ori 161, 1960 CriLJ 1349.
2. Emperor v. Abdeol Wadood Ahmed, ILR 31 Bom 293
3. Bouda Kui v. Emperor, AIR 1943 Pat 64
4. Yashwant vs The State of Maharashtra, AIR 2018.
5. Waryam Singh v. Emperor, AIR 1926 Lah 554
6. Po Mye v. The King, 1940 Rang LR 109 (at p. 118S): (AIR 1940 Rang 129 at p. 132).
7. Bhawoo Jiwaji v. Mulji Dayal, ILK 12 Bom 377

REFFERED BOOKS

1. Pandey J.N. Dr., Constitutional Law of India, 51st edition 2014, Central Law Agency.
2. K.D. Gaur, Indian Penal Code 5th edition 2017, universal law publishing co.
3. S.N MISHRA Code of criminal procedure2017 Central law publication.
4. BATUK LAL the Law of Evidence. Cental law Agency,2017

STATUTES

1. The Constitution of India, 1950

2. Indian Penal Code,1860
3. The Code Of Criminal Procedure,1973
4. The Evidence Act,1872

LAW JOURNALS

1. Allahabad Law Reporter.

2. Punjab Law Reporter.
3. All India Law Reporter
4. Bombay law Reporter
5. Calcutta Law Reporter

MERORIAL ON BEHALF OF THE RESPONDENT

 4
Roll No:
Semester:

STATEMENT OF JURISDICTION

The Appellant has submitted an appeal under Article 134 of the constitution of India
challenging the order of the High court of Bagisthan. The respondent humbly submits that the
Appeal is not maintainable and challenges the assertions made in the appeal.

MERORIAL ON BEHALF OF THE RESPONDENT

 5
Roll No:
Semester:

STATEMENT OF FACTS

1. That form the statement of fact, the place mentioned is Barhakhola in Briganj district
there was an abandoned aerodrome were large quantity of valuable aeroscrap is
collected. Which the property of Defence Department was as mentioned in the
statement of fact. There was also two Choukidars/Security guards namely Yug and Jeet
with a view to prevent Pilferage by unauthorised person.

2. The said place is surrounded by many tribal villages which are mostly inhabitated by
Mahim Tribes, which is usually presume to be an uneducated an orthodrox tribe. This
tribe/tribes have a very strong belief in the existence of ghosts and the people of this
tribe are notoriety infested that this place is infested with ghosts, this gives another fact
that the people of this particular place do fear ghosts and there is enough possibility that
they don’t go to this particular place (abandoned aerodrome) specially during night
because they fear ghosts.

3. As per the another statement of fact, Udam Singh from the firm of Singh Brothers, New
City, visited the village Barakhola accompanied by his servant Bir Bahadur for the
purpose of purchasing the said aerodrome. He and his servant stayed in the nearby
house of Navin Kishan, who was running a tea stall in that village at that point of time.

4. As per the statement of facts there were several foot-paths cutting across the aerodrome,
connecting one village to another. But on account of their fear of ghosts the people
would not usually venture out at night alone on those paths which provides the fact that
people usually don’t go to that place during night which means that it would be normal
to get frightened if someone sees someone during night at that particular place.

5. That during that time Udam Singh and his servant Bir Bahadur were in the village, one
person namely Chardra Mahim from village Ramgunj, which is a nearby village of
Barakhola, went to the tea stall of Nabin Kishan in that particular place (Barakhola) at
about 8.30pm at took shelter there for a night because he was afraid of proceeding back
alone to his village Ramgunj at that hour of that night due to the fear of ghost which
also give clear indication that people at that particular place usually don’t travel from
that path of the village at night.

6. As per the statement Udam Singh as his servant in the midnight had a conversation with
Chandra Mahim and in their conversation Udam Singh showed the curiosity to see
ghost, and Chandra Mahim suggested that “as it is a full moon night the ghost will be

MERORIAL ON BEHALF OF THE RESPONDENT

 6
Roll No:
Semester:

most active on the specific night”. Relying on the statement of Chandra Mahim, Udam
Singh and his servant Bir Bahadur agreed to travel with him at that night and offered
him to drop him back to his village in the process. Then they jointly also persuaded
Navin Kishan to a accompany them to see ghost. All four of them thereafter initiated
there on foot journey with torchlight in their hands to Ramgunj village through a foot-
path across aerodrome.
7. It was stated in the fact that while passing through the aerodrome they noticed a
flickering light at a distance of about 500 meters from path way and strong wind was
also blowing at that time and there was a movement of the light in that breeze which
created and impression to them that it was not an ordinary light but ‘will-o’ the wisp’.
They also found some apparitions moving around the flickering light. They thought that
some ghost was dancing around the light and they all ran towards that place. This
statement provides another fact that they thought there was ghost and it can be a matter
of frightening and one would attack object frightening him in self defence.
8. There after Bir Bahadur (servant) reached the spot first were the ghost were dancing
with a ‘Khukhri’ in his hand and began to attack ghost indiscriminately. Navin Kishan
arrived there after sometime, to stop Bir Bahadur but however Bir Bahadur did not
notice Navin Kishan and which lead him striking of one of his ‘Khukhri’ blowa to
Navin Kishan causing him serial injury. This is another matter of fact that Bir Bahadur
cause not in his full sense of mind and he attacked the ghost in self defence which leads
causing severe injury too Navin Kishan who was his fellow mate at that night.
9. Then after causing severe injury to Navin Kishan and other person when they cried in
pain and after hearing so many cries Bir Bahadur stopped attacking the people. It was
subsequently discovered that the apparitions that Bir Bahadur attacked were actually
some female of Ramgunj Village known to Mr. Chandra Mahim, who were there for
collecting mohua flower at that night under a mohua tree with hurricane lantern, which
they wanted to bring at Kali Mata Temple for fulfilling a local tribal ceremony, which
was a common practise and was done on every full moon night by the ladies of Mahim
Tribe. In this incident of indiscriminate attack with his ‘Khukhri’ one Geeta Mahim
was killed, and two other females namely Ganga Mahim and Sunahri Mahim were
greviously injured due to which a FIR was registered against Bir Bahadur and he was
charged under Section 302 IPC for murder of Geeta Mahim, under Section 326 IPC for
causing grevious hurt to two other persons and under Section 324 IPC for causing hurt
to Navin Kishan.
10. In this case Ld. Sessions Judge held the accused guilty on the ground that he did not act
with “due care and intention”.
11. The accused went on appeal before the Hon’ble Bagisthan High Court in which the
Hon’ble High Court rightly passed order after deciding on the testimony that the benefit
of general defence is available to the person who by reason of mistake of fact and in
good faith believes himself to be justify by law in doing an act found the Respondent
namely Bir Bahadur not guilty as because the actions of Bir Bahadur was consequence

MERORIAL ON BEHALF OF THE RESPONDENT

 7
Roll No:
Semester:

of bona fide mistake of fact under a sincere belief that h was attacking ghost and not
human beings and there was no mere chances of homicide and hence the case was
acquitted and the appeal was dismissed.
Hence it is crystal clear that there was no chance of homicide.

MERORIAL ON BEHALF OF THE RESPONDENT

 8
Roll No:
Semester:

STATEMENT OF ISSUES

ISSUE I:

Whether the Appeal by the appellant authority before the Hon’ble Supreme court
against the order of the Hon’ble High of Bagishtan is maintainable?

ISSUES II:

Whether the the benefit of Self defence (Section 79 I.P.C.) is available to the Respondent
who by reason of mistake of fact in good faith, believes himself to be justified by law in
doing an act ?

ISSUE III

Whether It Would Be Justified To Uphold the Acquittal of the Respondent by the Hon’ble High
Court?

MERORIAL ON BEHALF OF THE RESPONDENT

 9
Roll No:
Semester:

SUMMARY OF ARGUMENTS

Issue I

Whether the Appeal by the appellant authority before the Hon’ble Supreme court
against the order of the Hon’ble high of Bagishtan is maintainable?

It is humbly submitted before this Hon’ble Supreme Court that the appeal filed by the appellant
under Article 134 of the Constitution of India is not maintainable. As because the petitioner
has no locus standi to approach the Hon’ble Supreme Court because the present case does not
involve any substantial question of law, the HC has considered the entire gamut of evidence
properly and there has been no grave injustice. Also the Hon’ble Supreme Court will not
interfere with the concurrent finding of the courts below unless of course the findings are
perverse or vitiated by error of law or there is gross miscarriage of justice. Criminal appeals
may not be brought to the SC by the appellant when they are not covered by its jurisdiction.
Therefore in the present case, present appeal filed by the State & Bir Bahadur is not
maintainable.

Issue II

Whether the benefit of Self -defence (Section 79 I.P.C.) is available to the Bir Bahadur
(Respondent) by reason of mistake of fact in good faith, believes himself to be justified
by law in doing an act ?

It is humbly submitted before this Hon’ble Supreme Court that The benefit of Section self
defence( 79 I.P.C). is available to the Respondent who by reason of mistake of fact in good
faith, believes himself to be justified by law in doing an act. In view of the clear evidence
of Udam Singh to the effect that the respondent thought that he was attacking ghosts, so he
would be entitled to the benefit of that section.

ISSUE III

Whether It Would Be Justified To Uphold the Acquittal of the Respondent by the Hon’ble
High Court.

It is humbly submitted before this Hon’ble Supreme Court that the acquittal of the respondent
by the Hon’ble High court below is fully justifiable and valid. As the high court have come to
a conclusion that the actions of the Respondent was the consequence of bona fide mistake of
fact and under a sincere belief that he was attacking ghosts and not human being.

MERORIAL ON BEHALF OF THE RESPONDENT

 10
Roll No:
Semester:

WRITTEN PLEADING

I. WHETHER THE APPEAL BY THE APPELLANT AUTHORITY BEFORE

THE HON’BLE SUPREME COURT AGAINST THE ORDER OF THE
HON’BLE HIGH OF BAGISHTAN IS MAINTAINABLE.

It is humbly submitted before this Hon’ble Supreme Court that the appeal filed by the appellant
under Article 134 of the Constitution of India is not maintainable. As because the petitioner
has no locus standi to approach the Hon’ble Supreme Court because the present case does not
involve any substantial question of law, the HC has considered the entire gamut of evidence
properly and there has been no grave injustice. Also the Hon’ble Supreme Court will not
interfere with the concurrent finding of the courts below unless of course the findings are
perverse or vitiated by error of law or there is gross miscarriage of justice. Criminal appeals
may not be brought to the SC by the appellant when they are not covered by its jurisdiction.
Therefore in the present case, present appeal filed by the State & Bir Bahadur is not
maintainable. It is clear from State Of Orissa vs Ram Bahadur Thapa AIR 1960 Ori 161,
1960 CriLJ 1349 it would be reasonably inferred that he believed, in good faith, that he was
attacking a ghost and not a human being. There may be slight difference on facts between these
cases and the instant case. But on the evidence of the prosecution witnesses it is clear that the
respondent is protected by Section 79 I.P.C. The mere fact that had he exercised extra care and
attention the incident might have been averted is no ground for denying him the protection of
that section The Hon’ble High Court was therefore right in acquitting the appellant. The
order of acquittal is confirmed and this appeal is dismissed.

II. WHETHER THE BENEFIT OF SELF DEFENCE (SECTION 79 I.P.C.) IS

AVAILABLE TO A PERSON WHO BY REASON OF MISTAKE OF FACT
IN GOOD FAITH, BELIEVES HIMSELF TO BE JUSTIFIED BY LAW IN
DOING AN ACT.

It is humbly submitted before this Hon’ble Supreme Court that the benefit of Section 79 I.P.C.
is available to the Respondent who by reason of mistake of fact in good faith, believes
himself to be justified by law in doing an act. In view of the clear evidence of Udam Singh
to the effect that the respondent thought that he was attacking ghosts, so he would be

MERORIAL ON BEHALF OF THE RESPONDENT

 11
Roll No:
Semester:

entitled to the benefit of that section. Unless from the facts and circumstances established
in the case it can be reasonably held that he did not act in good faith. Good faith requires
due care and attention Section 52 I.P.C. but there can be no general standard of care and
attention applicable to all persons and under all circumstances. As pointed out in Emperor
v. Abdeol Wadood Ahmed, ILR 31 Bom 293:"The standard of care and caution must be
judged according to the capacity and intelligence of the person whose conduct is in
question. It is only to be expected that the honest conclusion of a calm and philosophical
mind may differ very largely from the honest conclusions of a person excited by sectarian
zeal and untrained to the habits of reasoning.'' "The question of good faith must be
considered with reference to the position of the accused and the circumstances under which
he acts .The law does not expect the same standard of care and attention from all persons
regardless, of the position they occupy Bhawoo Jiwaji v. Mulji Dayal, ILK 12 Bom 377
"What is due care and attention depends on the position in which a man finds himself and
vanes in different cases” Po Mye v. The King, 1940 Rang LR 109 (at p. 118S): (AIR
1940 Rang 129 at p. 132).

III. WHETHER IT WOULD BE JUSTIFIED TO UPHOLD THE ACQUITTAL

OF THE RESPONDENT BY THE HON’ABLE HIGH COURT.

It is humbly submitted before this Hon’ble Supreme Court that the acquittal of the
respondent by the Hon’ble High court below is fully justifiable and valid. So it is
clear that the instance incidence was neither a fact of self-defense nor bona fide
mistake of the Respondent The two leading decisions on the question of criminal
liability where a person kills what he considers to be ghosts are Waryam Singh
v. Emperor, AIR 1926 Lah 554 and Bouda Kui v. Emperor, AIR 1943 Pat 64. In
these two cases also, if the assailant had taken special care to ascertain who the
person assailed was, he would have easily known that he was attacking a human
being and not a ghost. Neverthless the High Court held that the assailant was
protected by Section 79 I.P.C. because, from the circumstances under which the
apparition appeared before him and his pre-disposition, it would be reasonably
inferred that he believed, in good faith, that he was attacking a ghost and not a
human being. There may be slight difference on facts between these cases and
the instant case. But on the evidence of the prosecution witnesses it is clear that
the respondent is protected by Section 79 I.P.C. The mere fact that had he
exercised extra care and attention the incident might have been averted is no
ground for denying him the protection of that section.

MERORIAL ON BEHALF OF THE RESPONDENT

 12
Roll No:
Semester:

PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly prayed before this Hon’ble Supreme Court that it may graciously be pleased
to:

1. Dismiss the instant appeal filed by the Appellant.

2. Upheld the decision of the learned Hon’ble High Court below.
3. And upheld the validity of section 79 of IPC.

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity & Good Conscience.

And for this act of kindness, the Respondent as in duty bound, shall humbly pray.

RESPECTFULLY SUBMITTED BY

COUNSEL ON BEHALF OF THE RESPONDENT

MERORIAL ON BEHALF OF THE RESPONDENT